The state’s highest court has ruled in a child custody case that although medical marijuana is legal in Maine, it can make a person unfit as a parent.

The Maine Supreme Judicial Court made that decision unanimously Thursday in a York County custody battle between Jeanette Daggett and Dustin Sternick, ruling that Daggett should have primary custody of the couple’s daughter in part because of Sternick’s medical marijuana use.

Sternick kept “voluminous amounts” of baked goods with marijuana in his freezer and jars full of marijuana in the kitchen cabinet, and both locations were accessible to the child, the court’s opinion said. Daggett had testified at trial in Biddeford District Court that their daughter “reeked of marijuana butter” when she returned from staying with Sternick, according to the decision.

The ruling, authored by Chief Justice Leigh Saufley, is the first issued by Maine’s highest court pertaining to custody of a child when a parent is using medical marijuana since it became legal in 1999, according to attorneys on both sides.

“Determining what is in the best interest of the child necessarily involves considering whether a parent’s ability to care for his or her child is impaired, including by his or her marijuana use. As with any medication or substance, the question of whether a parent’s ingestion of marijuana is legal is only part of the equation. The more important question is whether that ingestion negatively affects, limits or impairs a parent’s capacity to parent his or her child,” Saufley wrote in the eight-page decision.

In a ruling last year in Biddeford District Court, Judge Michael Cantara had sided with Daggett and awarded her primary custody of the couple’s daughter, with knowledge that Daggett intended to move to Florida with the child.

Sternick appealed the judge’s decision on grounds that it infringed on his protected rights under the Maine Medical Use of Marijuana Act, and that the lower court abused its discretion by awarding Daggett custody based on his legal use of marijuana.

KEY FACTOR: impaired ability to parent

The Maine Medical Use of Marijuana Act states that “a person may not be denied parental rights and responsibilities with respect to or contact with a minor child” as a result of using medical marijuana, unless the person’s conduct conflicts with the best interests of the minor child.

The Supreme Judicial Court found that while Sternick was partially correct in that a court cannot grant or deny custody based solely on one’s use of medical marijuana, a court’s primary consideration must be what is in the best interest of the child, and that his use of marijuana could be considered.

“Here, the record is replete with evidence that Sternick has been distracted from his role as a parent and provider to his child by his focus on obtaining and ingesting marijuana, and that his capacity to parent is impaired by his marijuana use,” Saufley wrote in the 6-0 decision rejecting Sternick’s appeal.

“Sternick uses large amounts of medical marijuana to treat a medical condition and has a great deal of marijuana, in many forms, all over the home,” the decision said. “Friends and relatives of Sternick often drop by the house to obtain or ingest marijuana, and the child has been exposed to marijuana. Sternick’s ability to care for a young child while under the influence of marijuana is questionable and problematic. The (lower) court found that Sternick appeared slow in his thinking at trial, likely due to his regular ingestion of marijuana, and that his eyes were pink and bloodshot.”

LITTLE CASE LAW ON MARIJUANA PROTECTIONS

Daggett’s attorney, Suzanne Thompson, called the case before the Supreme Judicial Court a “unique situation” because case law has not been fully developed regarding what protections the state’s medical marijuana law affords patients.

“I’m sure District Court judges have had this as an issue in their cases, but I don’t think they were appealed,” Thompson said. “There have not been any Supreme Court decisions pertaining to it.”

Thompson said Daggett, who now lives in Florida with her daughter, told her after Thursday’s court opinion was issued that she was pleased with the decision.

“I think she’s exhausted by the entire process,” Thompson said. “She thinks this is the best result.”

Attorney Anedra Gregori, who represented Sternick in the appeal pro bono, said late Thursday afternoon that she had not yet heard his response on the court decision.

She said this was a difficult case to argue on appeal because Sternick had gone to trial at the District Court level without an attorney.

“I wanted the court to look at this case through a proper lens and properly apply the protections of the statute,” Gregori said. “I think it was good to bring it to their attention.”

A GROWING CUSTODY ISSUE IN OTHER STATES

Although more than 20 other states have legalized the use of medical marijuana, Maine is one of just a few that provide protections for patients from custody discrimination. Michigan and Colorado have similar protections, but no other New England state does, according to the Medical Marijuana Caregivers of Maine, which has more than 400 members.

“Custody issues in families where a parent is legally using medical marijuana is a growing issue in every state with progressive marijuana laws,” Sara Arnold, co-founder of the Family Law & Cannabis Alliance, said by email Thursday night.

In California, where medical marijuana is legal, the standard most judges set in a custody battle involving a parent who uses pot medicinally is the health and welfare of the child, said Kiran Bisla, a partner in Sky Law Group.

One of her clients, involved in a custody dispute, has gone to great measures to lock up her medicinal marijuana and to smoke marijuana outside her home, Bisla said, noting that smoking marijuana in the presence of your child is usually grounds for removal.

“If you take adequate precautions to keep the marijuana locked up and out of the reach of your children, you should be OK,” she said. “Just because you use medical marijuana is not an automatic reason for a judge to remove the children.”

PROVIDING SOME GUIDANCE TO PARENTS

Hillary Lister, director of Medical Marijuana Caregivers of Maine, found Thursday’s ruling to be helpful because it provides answers for current medical marijuana users and prospective patients about the scope of protections the current law provides.

Lister said that although medical marijuana has been legal in Maine since 1999, it wasn’t until a citizens initiative passed in 2009 and went into effect in 2010 that the law provided protections from discrimination against medical marijuana users.

“This is very interesting, and a lot of people are going to be keeping an eye on it. This is one of the most frequent questions asked to Medical Marijuana Caregivers of Maine, ‘Will this affect custody?’ ” she said.

Lister said she had not followed the case closely, but from the files she read the courts had raised concerns that Sternick was not only leaving marijuana in places accessible to his child, but also was distributing it to friends and family.

“It would definitely be concerning if that wasn’t the case,” she said.

MEDICAL EVIDENCE OF MARIJUANA IMPAIRMENT

Dr. Dustin Sulak, a Maine osteopath who specializes in therapeutic uses for marijuana, said that although he thinks marijuana can be used effectively as a medicine, it also can be abused.

“I have seen when it is used correctly that cannabis really enables people to be successful in their lives. It can help people go back to work and be a better parent,” he said.

Sulak, who has offices in Falmouth and Manchester, has become known throughout Maine for his willingness to certify patients for medical marijuana.

“Alcohol and any prescription medication can also, if used incorrectly, undermine a person’s ability to be a good parent,” Sulak said. “In all honesty, it is proven medically that using too high of a dosage of marijuana could impair a person’s short-term memory, and you need short-term memory to parent correctly.”

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